Please help me send an email to our Chief Exec who has announced they are ignoring the Supreme Court

[VivaDixie]

I feel I have to do something about this - even just a carefully worded email.

Background: I work in a large well known, well respected white collar organisation. Historically it was very stuffy and male, but in recent decades it has become more inclusive.

This may be v outing but yesterday the very stuffy male Chief Exec announced in an all organisation Teams meeting that - basically - they are ignoring the SC ruling and said that trans colleagues can use whatever toilet and changing room they want. He had all the #bekind #beinclusive vibes. He reminded us all we have to be inclusive for all, clearly women don't come under that umbrella. Made lots of noises about 'we will all have different views on this as its a sensitive subject' bla bla

He made some waffle about how they are reviewing the matter and haven't made any final decisions, but - and this is crucial - that they have already taken external legal advice. I believe the crux of it is that they don't want to change the toilets and want to be seen to be inclusive.

This was one of those teams meetings where you can't put your hand up but there is an anonymous Q&A at the end - I didn't get a chance to put a Q in as I was blindsided and didn't know what to ask without sounding like an idiot.

So I intend to email the Chief Exec office and need to think about what to say. I want to keep it brief but I am thinking of getting the following in:

1. They say they have sought independent legal advice. How has this legal advice aligned with the SC ruling in terms of the fact that allowing trans colleagues to use whatever loo (and more crucially changing rooms) they like has always been but is now confirmed as unlawful
2. They say they are inclusive of all - how does this protect women's rights to safe spaces
3. The toilets are not self contained - in that they have floor to ceiling cubicles but the sinks are outside the cubicles. (Mumsnet - am I right that if you are essentially making these mixed sex then that set up is now unlawful?)

My questions are clunky but I am going to think over the weekend how to articulate this. If anyone has any ideas that would be much appreciated.

Thanks and good luck

Good luck.

I think we may work for same place. I did ask a Q, but it wasn’t mentioned in Q&A but was responded to.

Anyway to link?!

Gotta love everyone here pretending that the Supreme Court has found that the obligation for single sex facilities under the Workplace Regulations 1992 relates only to biological sex. Of course it did no such thing.

The Supreme Court interpreted the term 'sex' in the Equality Act 2010 only. It did not interpret the reference in the 1992 regulations. Of course the courts may do so in the future, but it is not at all certain that the courts would use the same interpretation.

Not least because the Equality Act came after the GRA2004. So the doctrine of implied repeal is relevant. Basically the court can conclude that Parliament, in legislating in a way which the Supreme Court considered could logically see 'sex' as biological sex, had effectively impliedly repealed the GRA2004 to the extent necessary for that interpretation to apply. Basically it is the idea that Parliament's most recent legislation is generally considered to have been made notwithstanding what has gone before, and to the extent that there is a conflict between two bits of legislation, the later legislation takes precedence.

The Workplace Regulations, by contrast, pre-dated the GRA2004. As such, Parliament passed a provision saying that someone's sex was, for all purposes, that stated as their acquired gender in a GRC in full knowledge and view there was statute requiring single sex facilities in workplaces, in full contemplation that some exceptions were needed (e.g. peerages) and yet Parliament chose not to carve out the Workplace Regulations from the GRA2004 provisions.

So it is entirely possible that a court determines that when providing facilities in line with the Workplace Regulations, an employer can (or potentially must) make separate facilities available for men, including trans men with a GRC, and women, including trans women with a GRC.

Maybe they won't reach that determination. The point is that those pretending like the courts have already made that determination are wrong.

@mexella and I have also got in touch

Gotta love everyone here pretending that the Supreme Court has found that the obligation for single sex facilities under the Workplace Regulations 1992 relates only to biological sex. Of course it did no such thing.

But funnily enough, an employment lawyer thinks that sex is also likely to mean biological sex in the Workplace Regs.

Sex in this context is not defined but is highly likely to mean biological sex. It’s true to say that the Supreme Court didn’t expressly consider these regulations in its judgment which focused exclusively on the interaction of the Gender Recognition Act 2004 and the Equality Act 2010. But, the way it reached its decision on that issue is instructive.

Generally, someone with a GRC changes their legal sex for ‘all purposes’ (s9(1)). However, that is subject to exceptions made by the Act or in any other act or subordinate legislation (s9(3)). The Supreme Court said someone’s legal sex doesn’t change for the purposes of other legislation if it would make that legislation incompatible or unworkable.

The 1992 Regulations were put in place to implement a 1989 EU Directive about health and safety and deal with ‘propriety’. The Supreme Court recognised that females, as a biological sex class, have a health and safety interest in being separated from biological males and it’s difficult to see how interpreting sex in the 1992 Regulations to include people with GRC’s would not render their purpose unworkable for the same reasons the Court identified in respect of single and separate sex spaces in the Equality Act. Plus, it would put the Regulations at odds with the single and separate sex provisions in the Equality Act which would lead to absurd results – particularly if the same facilities are used by customers.

Maybe the GLP will put it to the test?

Gotta love everyone here pretending that the Supreme Court has found that the obligation for single sex facilities under the Workplace Regulations 1992 relates only to biological sex. Of course it did no such thing.

Akua Reindorf, KC and EHRC Commissioner, says that although the biological definition of sex applies to the Equality Act the fact that it was clearly stated by the highest court in the land means that it will be a very low bar to get it accepted for other pieces of legislation.

This opinion only relates to GRC’s, which very few people have and you’re not allowed to share who has and who hasn’t got one. This makes the whole thing unworkable as how will women or employers know who is allowed and who isn’t?
I think a court would find this unworkable from a legal perspective

So is her position that wherever legislation refers to sex, it is likely to always be found to mean biological sex? Regardless of whether that legislation pre-dated GRA 2004 or not?

I mean I don't discount the possibility that the courts could go in that direction, but in doing so they would be essentially setting aside Parliament's clear provision that someone with a GRC is for all purposes the sex that accords with their acquired legal gender.

Courts generally don't set aside clear legislative intent, especially based on legislation which predates that intent.

I honestly wonder - did people not bother to read the judgment or do they just lack the capacity to understand it?

Yes. But how do courts get around the fact that Parliament passed a law that said that a trans woman with a GRC is 'for all purposes' a woman, and a trans man with a GRC is 'for all purposes' a man; and that Parliament set out specific exceptions to that legal principle but did not see fit to include the 1992 Workplace Regulations as one of those exceptions?

The constitutional principle of sovereignty of Parliament means that Parliament can legislate as it sees fit - even if its legislation creates practical challenges. If legislation is clear, courts generally can't just set it aside because it creates practical challenges.

Me too but perhaps not in the way you do.

I wonder if those confidently asserting that the FWS judgment means that employers now have a duty to provide toilets and changing facilities segregated by biological sex have read the judgment.

I was in the same meeting! I think they are terrified of the backlash of making a decision, but like you, I feel the terms in which it is couched seems very one sided.

Does your organisation usually operate on the basis of top-down decision-making? HR should know how sensitive the lavatory issue is and have consulted with employees, rather than just announcing what's going to happen.

You could reflect this in your intro - 'as to my knowledge staff weren't consulted on this sensitive issue, I am writing following the all-company Teams meeting on X to make my views and the reasons for them clear'.

So is her position that wherever legislation refers to sex, it is likely to always be found to mean biological sex? Regardless of whether that legislation pre-dated GRA 2004 or not?
She says in any situation where the legislation is dealing with something where sex matters.

Parliament's clear provision that someone with a GRC is for all purposes the sex that accords with their acquired legal gender.
She points out the GRA itself has excusions in it eg parents, hereditary peers

SabrinaThwaite made a very clear response to your question on this.

What org?

They always HAVE had a duty to provide seperate sex facilities, ever since the Workplace Regs.

The Supreme Court confirms that this refers to Biological sex not made up sex.

In which case I think her position is absurd.

She thinks its likely the courts will essentially pull the rug out from under what Parliament legislated for in 2004. The fact that exceptions were provided in 2004 argues even more strongly for not inventing exceptions that Parliament could have included but chose not to.

If the courts determine that every reference to sex in law must only mean biological sex, then they are essentially overturning the 2004 Act, which is pretty strikingly contrary to the sovereignty of Parliament.

Best of luck to you, @VivaDixie , @Theredjellybean and @Mexella and I love how MN brings us together. You'll be the next For Women Scotland!

That’s just not the case though. The Supreme Court did not interpret those terms for the workplace regs.

At the end of the day, female people exist.

So either the law as it stands today recognises we exist and that the rights put in place to support us because we are female are indeed specific to we who are female and are not extended to men who feel kinship with us for some metaphysical reason, no matter how honestly and genuinely those men may hold this belief.

Or one of those men or their useful allies is somehow successful in changing the law or rewriting the clarification so that it no longer recognises us as a group in our own right with legal existence and protection, in which case we have an undeniable moral foundation to start lobbying for new laws and a new social consensus to support female people.

Because if "woman" isn't specifically female then there is no reason not to start a separate conversation and movement for the people who are specifically female, one which trans women, by their own arguments that take female out of the definition of women, have excluded themselves from.

I am not going to go public with the org. We have a clear plan in place. That's enough for now.

@GalacticTowels it really was one sided! That's one of the angles we are going with. Feel free to contact me if you want to add your voice although I totally understand if you don't want to. We already have built a crack team 🤩

If you're read the judgment, or even a summary, you'll know that wasn't the Supreme Court ruling that required employers to provide toilets and changing facilities segregated by biological sex.
The requirement to provide toilets and changing facilities segregated by biological sex was already set out in great detail and with great clarity in a number of places, e.g. building regs, British Standards Institution, EA 2010...